Citation Nr: 1301463
Decision Date: 01/14/13 Archive Date: 01/23/13
DOCKET NO. 08-28 052 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia
THE ISSUES
1. Entitlement to service connection for a back disability.
2. Entitlement to a total disability rating for individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
D. Johnson, Counsel
INTRODUCTION
The Veteran served on active duty from April 1980 to April 1984.
This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2007 of a Department of Veterans Affairs (VA) Regional Office (RO).
The Veteran appeared at a hearing before the undersigned Veterans Law Judge in March 2012. A transcript of the hearing is in the Veteran's file.
In May 2012, the Board remanded the case for further development, which has been completed.
FINDINGS OF FACT
1. A current back disability is related to military service.
2. Service connection is in effect for status post abdominal hysterectomy with bilateral oophorectomy (rated as 50 percent disabling); major depression (rated as 30 percent disabling); and residuals of chronic pelvic inflammatory disease status post bilateral salpingectomies and appendectomy (rated as 10 percent disabling).
3. Resolving all doubt in the Veteran's favor, the criteria for assignment of TDIU are met.
CONCLUSIONS OF LAW
1. The criteria for service connection for a back disability have been met. 38 U.S.C.A. §§ 1131, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012).
2. The criteria for entitlement to TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefits sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.
A. Service Connection
The Veteran seeks service connection for a disability of the spine.
Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d).
To establish service connection, there must be competent evidence of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997).
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).
Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Service treatment records reveal complaints of muscular pain and stiffness in the neck, upper back and intrascapular areas beginning in 1981 and continuing through 1984. The initial onset of the Veteran's neck and upper back pain was spontaneous in nature and was not precipitated by trauma. Objective examinations revealed additional symptoms of tightness in the left and right trapezius muscles, as well as tenderness and spasms in the bilateral cervical spine paravertebral muscles and parascapular muscles. Her complaints were correlated with various diagnoses, including neck pain, upper back pain, torticollis, right trapezius muscle spasm, mild musculoskeletal back strain, and acute (and chronic) left upper cervical somatic dysfunction. Treatment included moist heat, rest, Bengay, a transcutaneous electrical nerve stimulation (TENS) unit, chiropractic visits, and physical therapy. Several of the clinic notes reflect a general complaint of "back pain."
An examination conducted in January 1984, shortly before separation from active duty, showed a normal spine examination. However, the Veteran did report recurrent low back pain, with involvement in the neck area, on a corresponding Report of Medical History. A cervical spine X-ray that same month was negative. A diagnosis of pleurisy was made in February 1984; however, there are no corresponding clinical notes. Chest X-rays taken in March 1981, February1984, March1984, and June 1984 revealed no significant radiographic abnormalities.
Records from the Veteran's subsequent service in the Army National Guard do not show complaints of neck, upper or low back pain.
Post-service private chiropractor treatment records dated from November 1985 to June 1996 show a history of a car accident; however, the specific date was not indicated. Although most of the clinical entries are illegible, the Veteran apparently was treated for neck and back pain in May 1986. The records show the Veteran was involved in another motor vehicle accident in January 1996 and was subsequently diagnosed with cervical strain/sprain and cervical subluxation.
Post-service VA medical records show a history of back pain complaints for many years, beginning in 2001. Treatment records reveal a complaint of recurrent/chronic pleuritic-type pain in the chest wall/left posterior chest that had been present for more than 15 years that had only recently become more severe, along with shortness of breath. A May 2001 pulmonary clinic note shows a clinical impression of chronic recurrent chest wall versus pleuritic pain of unknown etiology. The examining pulmonologist noted that a chest CT should be scheduled, but it would likely be negative. He further indicated that cervical and thoracic spine MRI's should be ordered to look for dorsal root nerve abnormalities (or problems such as herniated discs) that could be causing intermittent radicular pain.
A November 2001 MRI showed multilevel degenerative disc disease and syrinx at T6-7 and T7-8 in the Veteran's spine.
Findings of pleurisy and "pleuritic-type" pain are noted in some of the subsequent medical records, often in relation to the Veteran's symptoms and self-reported medical history, although no chest X-ray ever confirmed pleurisy. Additional medical records reflect complaints and treatment of generalized back pain, affecting the entire spine, but particularly the mid back and upper back region.
A March 2003 MRI of the cervical, thoracic, and lumbar spine revealed multilevel cervical spondylosis and degenerative disc disease with cord compression and nerve root compression; L3-4 and L4-5 disc herniations causing nerve root compression; an incidental T12-L1 small disc herniation; and degenerative disc disease changes in the thoracic spine unchanged from 2001.
In March 2012, the Veteran's VA primary care physican submitted a medical opinion in support of the claim. The physician indicated that the Veteran has chronic pain and moderate limitation of motion of her low back which prevents her from many activities. The physician further indicated that an MRI in 2011 showed multilevel disc disease and arthritis which as likely as not, began while the Veteran was on active duty and exposed to multiple episodes of heavy lifting and jumping, which could have contributed to chronic arthritis and low back pain that has continued and worsened through the years. The physician explained that her medical opinion was essentially based on the Veteran's reported service history, which she had no reason to doubt.
The Veteran was afforded a VA examination in June 2012. The examiner provided a diagnosis of low back degenerative joint disease (with an uncertain date of diagnosis). He also noted that the etiology of the pleuritic pain the Veteran complains of is not known. He opined that the degenerative joint disease was less likely than not incurred in service. A supporting rationale, discussed below, was provided.
A current back disability has been shown. With respect to a causal nexus between the current back disability and military service, the Veteran has provided a competent and credible report of continued back pain since service. Such a report of continuity of symptoms since service can serve to satisfy the requirement for a nexus between an in-service event and a current disability. \
There are two competent medical opinions of record; one supporting service connection and one against service connection.
The March 2012 VA physician opined that the current multilevel disc disease and arthritis was likely incurred in service. The June 2012 VA examiner opined that the degenerative joint disease was less likely than not incurred in service.
Although a supporting rationale was provided, it appears that the Veteran's competent and credible testimony of having continued symptoms of pain and discomfort in her spine that were very similar, if not identical, to those experienced in service was not adequately considered by the June 2012 examiner. In finding against a nexus, the examiner stated that the Veteran worked as a truck driver and horse trainer for many years after service and could not have performed these occupations without significant pain. However, private chiropractor treatment records received after the VA examination was conducted reveal that the Veteran did complain of low back and neck pain in the 1980's, and in March 1989 (while working as a truck driver) and was treated for the spine areas of L5, L4, T2, C1 and C3. This evidence supports her testimony of continuity of symptoms since service.
In finding against a nexus, the examiner noted that the Veteran suffered an assault in 2006 which resulted in spinal pain. However, the record clearly shows a long history of back pain and evidence of multilevel disc disease for many years preceding the 2006 assault. The examiner also did not include any comment or discussion with respect to the positive March 2012 VA medical opinion. These factors tend to diminish the probative value of his opinion.
While both of the medical opinions contain imperfect rationales, they are equally competent, and both provide a rationale for their diametrically opposed opinions. This places the evidence in a state of relative equipoise. All doubt concerning the continuity of symptomatology must be resolved in favor of the Veteran. Service connection for a back disability is warranted.
B. TDIU
Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).
If the total rating is based on a disability or combination of disabilities for which the Schedule of Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a).
If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).
The Veteran is currently service-connected for: status post abdominal hysterectomy with bilateral oophrectomy, rated as 50 percent disabling; major depression, rated as 30 percent disabling; and residuals of chronic pelvic inflammatory disease status post bilateral salpingectomies and appendectomy, rated as 10 percent disabling. These service-connected disabilities are rated as 70 percent disabling when combined. See 38 C.F.R. § 4.25 (2012). The Veteran meets the schedular requirements for a TDIU, as she has one disability rated at 50 percent and a combined rating of 70 percent. The Board has also awarded service connection for a back disability in this decision. The question remaining is whether the Veteran is precluded from obtaining or engaging in substantially gainful employment due to all her service-connected disabilities.
On the Veteran's January 2006 TDIU application, she stated that she stopped working full-time in 1997 because her psychiatric and gynecologic disabilities rendered her unable to continue work as a horse trainer. The application shows that she completed the 12th grade and had no other training or education. On a prior TDIU application completed in March 2003, she reported that she had received training and certification as an insurance agent, but that she was unable to work in such a position because she could not interact with the public due to her difficulties with anxiety and depression.
The Veteran was afforded VA examinations (general and psychiatric) in August 2006 to address her employability. Her back disability was also evaluated. The general examiner did not specifically state whether gainful employment was precluded due to the Veteran's gynecologic disabilities. The psychiatrist opined that the major depression caused difficulty in establishing and maintaining effective work relationships and provided a GAF score of 60. This examiner also did not indicate whether employment was precluded due to her depression. Neither examiner considered the impact of the combined effects of the Veteran's service-connected gynecologic and psychiatric disabilities - much less in addition to her back disability- on her employability.
In the Veteran's April 2007 Notice of Disagreement, she described the difficulties she experiences due to her service-connected disabilities, and her (then) non service-connected back. She further indicated that such difficulties are further complicated by the strong medications that she takes for pain and her mental health.
In an August 2008 Statement of the Case, the RO indicated that there is no medical evidence or employment records showing that her service-connected depression or pelvic inflammatory disease prevents her from obtaining gainful employment. This determination appears to be consistent with the evidence of record. The RO further stated that the Veteran's major disability is due to her (then) non service-connected back, and that it is of such severity so as to make it impossible to pursue employment, particularly as a horse trainer.
VA outpatient medical records since 2006 reflect treatment for depression, anxiety, chronic pain syndrome, chronic back pain, in addition to other health problems. The Veteran also uses a cane for ambulation due to her back disability. In a September 2006 clinical entry, one physician indicated that the myofascial pain and spasms affecting the Veteran's spine are additionally affected by her service-connected depression and anxiety. Overall, the VA treatment records reflect that the Veteran has chronic impairment and significant pain due to her back disability. In a June 2012 statement the Veteran also reported that she also continues to suffer from chronic and significant pelvic pain.
In a November 2012 Supplemental Statement of the Case, the RO reiterated their finding that the cervical and lumbar stenosis would affect the Veteran's ability to be gainfully employed, but that it was not a service-connected disability.
Based on the totality of the evidence, and given that RO has now twice acknowledged that the Veteran is unemployable primarily due to her back disability which is now service-connected, the Board resolves reasonable doubt in her favor and finds that TDIU is warranted.
ORDER
Service connection for a back disability is granted.
A TDIU is granted.
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RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs